It is hardly necessary I should say more than that I concur in the opinion just pronounced by the presiding judge. It has always appeared to me, that the only question in the case is, whether the wife, by yielding her precedence to a creditor of the husband, as to the rank of their mortgages, bound herself either directly or indirectly for a debt of her husband’s contracting, in the sense of article 2412 of the code ; because, if that article be prohibitory, it creates a legal incapacity to contract, and the contract being null, it is admitted on all hands, that she cannot validly renounce ; or, in other words, give'herself a capacity which the law has denied her.
It cannot be denied that this is a contract; it is an agreement not to do. Mrs. Dimitry agrees not to enforce her mortgage, to the prejudice of Zoits, a creditor of her husband. If he enjoyed the right-of being first paid out of the property mortgaged, he derives that' right from this agreement or contract; and the object of this proceeding is, to enforce it. It has been said that, like a receipt for a sum of money, this agreement gives rise to no legal obligations on the part of Mrs. Dimitry. It certainly conferred a legal right on Zoits which he did not possess without it, and by means of which his debt was more amply secured. She does not bind herself personally to pay the debt, it is true; but it is not of the essence of suretyship that the obligations of the principal and the surety should be co-extensive. If A consents that B may mortgage the former’s land, to *603secure the payment of a debt personal to the latter, in what relation do they stand to each other 1 If Mrs. Dimitry, instead of ceding her precedence, bad consented to the pledge of certain evidences of debt due to her personally, to guaranty the payment of Zoits’s claim, will it be contended that she 'did not become pro tanto surety, for her husband ? Will it be said, that she did not bind herself to a certain extent for a debt of her husband’s contracting %
Saturn S anum of the Bo-man law, is the fountain of our lation^to mthé “S1?15 of maf-relates to mort-fheTmate con-gave the wile, who had pledged her own ¡Sitor 0f°her the right to recover itback, although by the creditor.It bas been said, that the wife may sell her own para-phernal property, and nothing prevents her from paying a debt of her husband out of the proceeds. It is not so clear, that in such a case she might not recover back from her husband’s creditor money paid under such circumstances; money which she did not owe, and which she could not validly promise to pay. The Roman law is not now in force; but the Senatus Gonsultum Velleianum is the original fountain of our legislation on this subject, and it applied to •all contracts and engagements whatever. As relates par- . -, i r ticuiariy to mortgages and sales, the Senatus Gonsultum gave the wife, who had pledged her own property to a creditor of her husband, a right to recover it back, although it had been sold by the creditor.; and Pomponius teaches us that, if a woman, who has sold an immoveable to a creditor of the husband, having delivered it on condition that he should ° impute the price to the husband’s debt, should sue for the property, he might, indeed, set up the sale as an exception, but she would be permitted to reply that the sale was in 1 r J contravention of the Senatus Consultum, whose dispositions apply to the case. Pandects, law 16, title 1. Pothier's Pandects.
The article of our code in question, is full and comprehensive in its language, and, in my opinion, intended to prevent married women from intervening in any manner in the contracts between the husband and his creditors, by which their rights might be- ultimately affected to their prejudicé. So long as they enjoy those immunities by law, and labor under those disabilities, they are entitled to the protection of courts of justice.